In August 2010, the Agency decided “to increase the number of [respiratory therapists] on the hospital staff and to offer on-call pay for work done after hours by employees of the hospital.”^[1] On August 18, 2010, the Agency provided the grievant with a memorandum informing him that, from that date forward, he would receive additional compensation for work performed outside of duty hours. In November 2011, the Union filed a grievance on behalf of the grievant, alleging that the Agency failed to properly compensate him for work that he performed outside of duty hours from November 1998 through August 2010. The grievance went to arbitration.

 

 

The Arbitrator acknowledged that the grievance was not “brought forward in a timely manner.”^[2] Nonetheless, he found that “[a] strict reading” of the thirty-day requirement “would lead to an unjust result,” and determined that “[t]he most equitable solution is to grant the [g]rievant some compensation.”^[3] Therefore, the Arbitrator awarded the grievant $24,000 for overtime that he purportedly worked from November 1998 to August 2010. The Arbitrator reasoned that this award of backpay would ensure that “the [Agency] knows that services cannot be accepted from employees without compensating them; and the Union knows that a grievance must be brought forward in a timely fashion as specified by the requirement in the [agreement].”^[4]

 

 

On October 2, 2014, the Agency eFiled its exceptions to the award. The Agency served its exceptions on the Union’s representative by first-class mail on that same day. As such, the Union’s opposition had to be filed with the Authority no later than November 10, 2014, in order to be timely.^[5] However, the Union did not file (postmark) its opposition until November 14, 2014.

 

 

 

The Agency argues that the award fails to draw its essence from the agreement.^[6] Specifically, the Agency argues that the Arbitrator incorrectly interpreted Article 43, Section B of the agreement by considering a grievance that was filed more than thirty days after the events that gave rise to the grievance.^[7]

 

Procedural-arbitrability determinations involve questions of whether a grievance satisfies a        collective-bargaining agreement’s procedural conditions.^[8] Arbitrators’ determinations regarding timeliness are procedural-arbitrability determinations.^[9] Additionally, questions concerning whether the preliminary steps of the grievance procedure have been excused are       procedural-arbitrability questions.^[10] For example, an arbitrator’s determination that the circumstances of a particular case do not warrant “strict compliance”^[11] with an agreement’s grievance-filing deadline is a     procedural-arbitrability determination.^[12] The Authority generally will not find an arbitrator’s                 procedural-arbitrability determination deficient on grounds that directly challenge the determination itself, including a claim that an award fails to draw its essence from a collective-bargaining agreement.^[13]

 

Here, the Arbitrator found that the grievance could proceed regardless of the agreement’s thirty-day time limit. Specifically, he acknowledged that limit and the Union’s failure to “address[]” it, but he found that, in the circumstances of the case, “[a] strict reading of the      . . . [a]greement would lead to an unjust result.”^[14] In other words, he found that given the circumstances of the case, strict compliance with the limit was not warranted. Consistent with the principles set forth above, this is a procedural-arbitrability determination. 

 

Despite the dissent’s assertions, the Arbitrator did not find that the grievance was “not arbitrable.”^[15] To the contrary: He found that the time limit in the agreement should be excused, and, thus, he resolved the merits of the grievance. Under the above-cited precedent – which neither party challenges, and the dissent fails to acknowledge – this is a determination that the grievance was procedurally arbitrable. So, contrary to the dissent’s claim, neither we nor the Arbitrator have “ignore[d]” anything.^[16] Nor does this decision, upholding the Arbitrator’s procedural-arbitrability determination in the particular circumstances of this case, “free” arbitrators “to disregard procedural requirements as they see fit.”^[17]  

 

The Agency’s essence exception attempts to directly challenge the Arbitrator’s procedural-arbitrability determination. As essence exceptions that directly challenge procedural-arbitrability determinations do not provide a basis for finding those determinations deficient,^[18] we deny the Agency’s essence exception. 

 

 

To establish that an award is based on a nonfact, the excepting party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.^[19] As relevant here, the Authority has held that arguing that no evidence exists to support an arbitrator’s finding does not demonstrate that the arbitrator’s award is based on a nonfact.^[20]

 

The Agency argues that the award is based on a nonfact because the Arbitrator failed to “set forth a factual basis for his determination to award $24,000.00 to the [g]rievant.”^[21] According to the Agency, there is “no evidence . . . as to what [the grievant’s] rates of pay might have been” during the twelve-year period at issue.^[22] The Agency also argues that there is no “specific or detailed evidence of the dates [the grievant] claims to have worked without compensation.”^[23] But, as discussed above, an argument that no evidence was presented to support an arbitral finding does not demonstrate that the award is based on a nonfact.^[24] Accordingly, we deny this exception. In doing so, we note that the Agency has not argued that the award is contrary to law.^[25]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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